Volume 3 Abstracts

SCU Law Review Volume 3 November 1999

Abstracts

Limitation of Liability and its place in the past, present and future- how can it survive?
By Serge Killingbeck.

This article deals with the subject of limitation of liability for maritime claims, both tracing its history and presenting argument on its current application and relevance. Limitation of liability's genesis was as a means of encouraging investment in maritime trade at a time when the colonial powers of Western Europe were using trade as a means of expanding their global influence. The situations in which limitation of liability are involved are then outlined, based on an address by Lord Mustill on the subject. The article then moves on to the relevance of limitation of liability in the modern maritime business environment. Exploring various points of view from individual writers and notably in the United States judiciary. Finally, the article gives an Australian perspective given this nations extended coastline, unique environment and extensive involvement in international trade yet oddly low level of nationally flagged and operated shipping. The author concludes that the concept of limitation liability has a future providing both it and the shipping industry undergo some major changes in orientation.

Proportionality, Australian Constitutionalism and Governmental Theory - Changing the Grundnorm.
By Paul Loftus

This paper attempts to explain the recent activity in the High Court's developing constitutionalism. By reviewing the traditional schools of constitutional interpretation of originalism, legalism, and progressive interpretation, the paper suggests that the High Court has been actively promoting a re-invigoration of our theory of government from one based on the principle of parliamentary sovereignty to one determined by popular sovereignty. That is, a constitutionalism and mode of government which is responsive to and mindful of the subjects it governs and serves.

It is argued that the Court has been able to introduce this renewed notion of government through a change in its constitutional interpretation. In its move away from a strict and complete legalism to a progressive, temporally and socially relevant interpretative method. In the forefront of this paradigm shift has been the adoption, expansion and use of the doctrine of proportionality. The use of proportionality as a governing ethic of constitutional legislative validity is discussed through the prism of recent constitutional cases - most notably the decisions in ACTV, Nationwide News, Cunliffe, Leask, Lange and Levy.

On a broader plain, and as a part of a wider project, this paper suggests that the change in our constitutional jurisprudence is perhaps suggestive of the introduction or strengthening of a republican theory of government as outlined by writers in the United States such as Sunstein and Ackerman- one of community action, involvement, discussion and enfranchisement. At worst, this is an argument which asks of institutions of power in society to achieve the ends which justify their existence. That being, to serve the people and imbue governmental action with the characteristics of necessity, precision, clarity and effectiveness.

ATSI Female Custodial Deaths
By Marie Brooks

This paper analyses the rate of Aboriginal female deaths while in custody. The area has often been overlooked in the past in preference to analysing the male rates of death's in custody. What the female rates show are perhaps even more distressing than those of the male rates. The author uses statistical evidence throughout this paper.

Power V The State: Some Critical Foucauldian Reflections On Administrative Law, Corporatisation And Privatisation,
By Christine Bateup

Administrative law has emerged in the last twenty years as a legitimate branch of public law in its own right.

Utilising Foucault's ideas in order to understand the range and diversity of power relationships in modern Australian society, it will be argued that an approach is needed which challenges the abstract concept of the state itself. Principally, I will argue that rather than continuing to look at the question of administrative law in relation to the abstract entity of "the state", we should instead turn our focus to the concepts of power and governmentality in order to formulate an alternative theory of how government functions and how citizens are affected by its operation. I will begin with a brief overview of Foucalts work, his general theories of power and governmentality. I will then examine what Foucauldian concepts can add to the development of administrative law theory. In particular, I will focus on the issues of corporatisation and privatisation, and examine whether administrative law mechanisms, with a particular emphasis on judicial review, should extend to corporatised and/or privatised bodies. I am not attempting to construct a "Foucauldian theory of administrative law. I adopt Baxter's suggestion that it is instead more useful to consider in a diffuse sense how Foucault's themes and concepts might be used and appropriated in the development of legal theory.

Mad Mothers, Over-Zealous Therapists and the Paedophile Inquiry
By Nicole Rogers

The author examines the appearance of central tenets of the child sexual abuse backlash movement in the 1997 NSW Royal Commission Report on its Paedophile Inquiry. The image of the family unfairly persecuted by the government, the role played by overzealous welfare workers in unjustified investigations, and the connection between "mad mothers" and the manufacture of false allegations are all themes which have been developed by the backlash movement. A close analysis of the Report of the Wood Royal Commission reveals the extent to which backlash ideology was accepted by the Commission. If, as appears to be the case, the Report is representative of the dominant legal discourse in this area, this study should raise questions about the influence of backlash ideology on law and policy. Child sexual abuse, with its predominance of male offenders, is linked to the construction of masculinity in our society. These particular backlash stereotypes divert attention away from this issue and focus instead on the role of women in "creating" the phenomenon of child sexual abuse through their unbalanced, mad, unreasonable and illogical behaviour.

Discourse analysis of the law: Subject-constitution and the representation of the indigenous legal other.
By Peta Broughton

Attempt is made, through theories of discourse analysis, to examine how the law constitutes itself vis-à-vis construction of a legal other. This necessarily involves a two-part inquiry: the first into object construction or representation, and the second into subject constitution. It is suggested that orthodox jurisprudence is ill-equipped to critically examine the legitimating processes of the law because of its refusal to engage with a working concept of ideology.

The examination of indigenous Australians in legal discourse illustrates the problematic notion of a consensual community as the source of law's authority.

The manner in which the law defines and constructs Aboriginality is examined through analysis of several areas of law including native title and copyright. There are many legal others, however the place of indigenous Australians in the dominant narrative is interesting because it specifically problematises the very legitimacy of Anglo-Australian law. The survival of Aboriginal customary law, albeit not legally recognised, demands the question: "by what lawful process have you [the state] come into being?". Furthermore, the point at which the state came into lawful existence serves as an example of Derrida's founding moment of "performative violence'".

Navigating Cyberspace: Frontier Land or Legal Minefield?
By Brian Fitzgerald

The Internet has had a profound effect on communicative activities: private, public, recreational, commercial, educational and governmental. In doing so it has, and will continue to, raise many interesting legal questions. The purpose of this article is to overview some of the more interesting legal issues concerning the on-line communication and exploitation of informational products. This will involve consideration of a mixture of intellectual property, torts, unjust enrichment and international law issues.

A Statutory Business Judgment
By Matthew Berkahn

This comment discusses new proposals for Corporations Law.